Hall argued (unsuccessfully) that his use of Facebook and MySpace should not have constituted a violation of those terms. Given that the purpose of the restriction was to prevent him from repeating his offense—attempted sexual exploitation of a minor—it seems pretty natural that those sites would indeed be included, and the facts I’ve looked at suggest Hall not only realized as much, but deliberately sought to circumvent software blocks imposed by his supervisors, so I’m not at all inclined to dispute the result particular case. Still, this exchange between the court and Hall’s surveillance officer (or S.O.) caught my eye:

Q: Can you show me where on [the Guidelines] [Hall] is not allowed to use social networking sites?

S.O.: Yes, No. 13. I will not use any electronic bulletin board system[s] and social networking [is] underneath bulletin board system[s] because [users] can post comments and that’s what a bulletin board system is.

The thing is, if any site where users can post comments—whether or not that’s the site’s primary function—counts as an “electronic bulletin board system,” that term now encompasses nearly all of the most popular or useful sites on the Net: Amazon, Ebay, YouTube, Craigslist, Wikipedia, IMDB, Flickr, news sites like NYTimes.com, most blogs… even many corporate websites have some kind of community forum or chat-support function. One can, of course, use most of those sites without accessing the bulletin board function—though Craigslist is a fuzzy case—but plenty of people just maintain a more-or-less static profile page and photo host, without using the chat or messaging features. Intuitively, you want to apply the rule to exclude the use of “bulletin board” style functions, not entire sites, given how ubiquitous those functions are now. But then you’ve got to figure out which functions those are. A Facebook wall seems bulletin board–ish when comments from others are enabled, but if they’re turned off, the wall is just a string of recent status updates. The chat function presumably counts as “instant messaging,” but what about private messages to friends? Is that “posting a comment” or is it just another form of e-mail, which is conspicuously excluded from the forbidden list, presumably because it’s more or less impossible to work as a white-collar professional without using e-mail. Does reading a solution to a technical problem on a discussion board (perhaps after clicking through a Google link that doesn’t make clear what sort of site the answer is located on) count as “using” a board, or does that require signing up for an account and posting messages?

Many of the other categories raise further questions. Phones and text messaging are presumably allowed, but Apple’s new Messages client effectively obliterates the distinction: Text messaging is instant messaging. Gmail is presumably allowed, while Gchat is not—but you’d be forgiven for failing to see much difference between a threaded e-mail exchange and a Gchat log, and presumably if Google felt like it, they could obliterate the distinction within the user interface entirely. Skype is a VoIP service—presumably equivalent to ordinary phone service—but also has text chat functionality. Listservs operate over e-mail, but are functionally equivalent to “newsgroups” or “user groups” and are typically also accessible via Web-based interfaces that look like any other electronic bulletin board.

Since the great generative power of the Internet rests in its end-to-end architecture, which enables new and unexpected functions to emerge in a distributed way—often from the choices of users behaving in ways the platform creators did not anticipate—it shouldn’t be terribly surprising that a list based on decade-old categories would lead to substantial ambiguity. Which seems like a bit of a problem when the classifications determine how well a parolee can reintegrate into society as a productive professional and community member—not to mention whether they get to remain free or return to lockup. At the very least, you’d think that would be a reason to regularly update the boilerplate, but it also calls into question whether regulating parolees by means of these broad technological categories is really the right way to go about it.

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